THE NEW NORMAL

 By now it has sunk in that in the case before SDFL Judge Gayles,  which we blogged about here, AUSAs lied to Judge Gayles. They invaded the defense team with a cooperating co-defendant, and when caught, they lied in court to the judge. The agents also lied when they testified at the initial hearing on the motion for a new trial. 

One AUSA tried to get an agent to cover for him by writing a fake report.  Government agents and prosecutors came to court and minimized the impact of the use of a cooperating co-defendant attending defense meetings where a Joint Defense Agreement had been signed. 

In the Office of Professional Responsibility investigation, it came out that when a defense attorney for the cooperating co-defendant expressed concern, one agent told him "if he wants to get time off his sentence, this is what he has to do."

What happened before Judge Gayles was a concerted effort by two prosecutors and multiple federal agents to subvert justice, invade the sanctity of attorney/client privileged conversations and then lie to cover it up. Pure and simple. 

Is this an outlier? A one off? We think not. 

Why is it so hard for Judges to accept that law enforcement and prosecutors are human and that they will compromise their values and ethics to win cases?  A defense witness will lie for their loved one, because they have a motive.  Judges say that all the time and prosecutors argue that to juries every day in this country. But a law enforcement agent is just doing his job. Prosecutors will not risk their career to win a case. That is the reasoning of Judges across this nation. And it is wrong. And how many of these cases do we have to see before we accept that it is wrong? 

Don't prosecutors and agents risk professional ridicule and loss of power and prestige when they lose a big case? Aren't they afraid of supervisors whispering "no- she lost that last case at trial, let's assign someone else to this new case and send her back to handling theft at post office cases for the next few years until we have confidence in her again." 

In nearly 40 years of criminal law practice, we have seen the same passion and desire to win in police and prosecutors that we see in defense counsel. Cops form opinions- "he did it, so I have to get him, even if I lie about that statement I overheard him say."  Prosecutors- and this is from a true episode in the SDNY a few years ago- bury a few pages of exculpatory documents in a digital dump of tens of thousands of pages of new discovery. They technically provided Brady material, but they didn't want to lose so they tried to hide it from the defense. 

This is not a call for prosecutors and cops to play fair. They won't. They never have and they never will. It is a by-product of the adversarial system. Prosecutors and police officers will continue to try and win at all costs when they think a guilty person may go free. They become their own judge and jury because they think they are best situated to evaluate what the defendant-  who they have been investigating for years- deserves. Prosecutors and police officers have almost no faith in judges to do the right thing. That's why they lied to Judge Gayles- and if you think he is the only judge in this district to be lied to in the last few years by prosecutors, then you also believe the last presidential election was stolen. 

This is call to Judges to OPEN YOUR EYES and start believing that like everyone else before you, prosecutors and police officers will lie to you, in open court, even after taking an oath, if they think they can get away with it,  and the ends- in their minds- justifies the means. 

So Judges, deny all the motions you want. Find as many defendants guilty at bench trials as you care to, but just DO NOT justify your decision with the faulty logic that a police officer or a prosecutor would not risk their career in lying to win a case. You now have proof they did and do.